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Friend v. Holder, no. 10 55906 (9th cir. 4-30-2013)

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Failed citizenship claim that just won't quit! He's been told that he did not acquire citizenship at birth, numerous times. The 9th Cir. told him in 1999, but he re-applied and it reached the 9th Cir. again more than a decade later.

Published in: News & Politics, Lifestyle
  • Supreme Court says in Afroyim v. Rusk that the 14th Amendment Constitution completely controls the citizenship status of citizens in this country. District court said that no error of Friend was found when he applied for his certificate. By what authority does Hon. Carr have to change the status of Friend's birth? That decision is extrajudicial and makes this wise judges liable in court, SAYS THE SUPREME COURT. Please fac me in court if you are too sure of yourselve rather than desmising my case without any hearting by claiming absolute immunity when the highest court says no immunity when you cross the Constitution.
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Friend v. Holder, no. 10 55906 (9th cir. 4-30-2013)

  1. 1. The Honorable James G. Carr, Senior United States District Judge for*the Northern District of Ohio, sitting by designation.FOR PUBLICATIONUNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITHORACE GOZON FRIEND,Plaintiff-Appellant,v.ERIC H. HOLDER, JR., AttorneyGeneral; DEPARTMENT OFHOMELAND SECURITY; UNITEDSTATES CITIZENSHIP ANDIMMIGRATION SERVICES,Defendants-Appellees.No. 10-55906D.C. No.8:09-cv-00165-JVS-ANOPINIONAppeal from the United States District Courtfor the Central District of CaliforniaJames V. Selna, District Judge, PresidingArgued and SubmittedFebruary 13, 2013—Pasadena, CaliforniaFiled April 30, 2013Before: Marsha S. Berzon and Paul J. Watford, CircuitJudges, and James G. Carr, Senior District Judge.*Opinion by Judge Watford
  2. 2. FRIEND V. HOLDER2This summary constitutes no part of the opinion of the court. It has**been prepared by court staff for the convenience of the reader.SUMMARY**ImmigrationThe panel affirmed the district court’s summaryjudgmentdismissal of Horace Gozon Friend’s action brought under8 U.S.C. § 1503(a) seeking a declaratory judgment that he isa United States citizen, although he was born in thePhilippine Islands, because his father was a U.S. citizen.In Friend v. Reno, 172 F.3d 638 (9th Cir. 1999), this courtheld that Friend’s father could not transmit citizenship to himunder Revised Statutes § 1993, the law in effect when he wasborn in 1931, because his father never resided in the UnitedStates. In the present case, the panel held that the NationalityAct of 1940, which liberalized the residency requirement, didnot apply retroactively to Friend.COUNSELDouglas D. Janicik (argued), Steptoe & Johnson LLP,Phoenix, Arizona, for Plaintiff-Appellant.Craig A. Defoe (argued), Trial Attorney; Tony West,Assistant Attorney General; J. Max Weintraub, SeniorLitigationCounsel, United StatesDepartment ofJustice,CivilDivision, for Defendants-Appellees.
  3. 3. FRIEND V. HOLDER 3OPINIONWATFORD, Circuit Judge:The plaintiff in this action, Horace Friend, contends thathe is, and has been since birth, a United States citizen. Hislong quest to obtain official recognition of that status beganin 1990, when he first applied for a certificate of citizenship.Mr. Friend claimed to be a citizen under Revised Statutes§ 1993, the relevant law in effect at the time of his birth in1931. Section 1993 provided:All children heretofore born or hereafter bornout of the limits and jurisdiction of the UnitedStates, whose fathers were or may be at thetime of their birth citizens thereof, aredeclared to be citizens of the United States;but the rights of citizenship shall not descendto children whose fathers never resided in theUnited States.Mr. Friend was born in thePhilippine Islands, which werethen a territorial possession of the United States but werenonetheless deemed “out of the limits and jurisdiction of theUnited States” for purposes of § 1993. See Friend v. Reno,172 F.3d 638, 642 (9th Cir. 1999). Mr. Friend’s father was aUnited States citizen at the time of Mr. Friend’s birth, andhad lived his entire life in the Philippines. Mr. Friend’smother was a non-citizen national of the United States.When Mr. Friend first came before this court in 1999, werejected his citizenship claim under Revised Statutes § 1993.Friend, 172 F.3d at 648. We held that although Mr. Friend’sfather was a United States citizen, he could not transmit his
  4. 4. FRIEND V. HOLDER4Section 201(e) of the 1940 Act provided: “The following shall be1nationals and citizens of the United States at birth: . . . A person born inan outlying possession of the United States of parents one of whom is acitizen of the United States who resided in the United States or one of itsoutlying possessions prior to the birth of such person.” Section 201(e)was repealed in 1952; its current analogue can be found at 8 U.S.C.§ 1401(e).citizenship to his son under § 1993 because he had neverresided “in the United States,” as the statute required. Werejected Mr. Friend’s argument that his father’s residence inthe Philippines should qualify as residence in the UnitedStates. Id. at 645.In so holding, we noted that if Mr. Friend’s claim hadbeen governed by the Nationality Act of 1940 (the 1940 Act),he would indeed be a citizen. Friend, 172 F.3d at 643. The1940 Act superseded § 1993 and, among other things,liberalized the applicable residency requirement fortransmitting citizenship to children born abroad by allowingthe citizen parent to have resided in either the United Statesor one of its outlying possessions prior to the child’s birth.See Nationality Act of 1940, Pub. L. No. 76-853, § 201(e),54 Stat. 1137, 1138. Because the Philippine Islands were1considered an outlying possession of the United States until1946, see Rabang v. INS, 35 F.3d 1449, 1451 (9th Cir. 1994),Mr. Friend’s father would have satisfied § 201(e)’s residencyrequirement. Friend, 172 F.3d at 643. But we made clearthat “Rev. Stat. § 1993 is the statute that controls the outcomeof this case,” because the applicable law governingtransmittal of citizenship is ordinarily “the statute that was ineffect at the time of the child’s birth.” Id. at 641 (internalquotation marks omitted).
  5. 5. FRIEND V. HOLDER 5Our ruling did not end the matter. Mr. Friendsubsequently filed a second application for a certificate ofcitizenship, this time grounding his claim on the 1940 Act,notwithstanding our earlier conclusion that Revised Statutes§ 1993 was controlling. When we decided Mr. Friend’s firstappeal, he believed his parents had been married at the timeof his birth. Mr. Friend now claims that newly discoveredevidence, not available earlier, shows that in fact his parentsdid not marry until 1958, when he was 27 years old. Mr.Friend argues that, as a child born out of wedlock, he iscovered by a special provision of the 1940 Act that made§ 201(e) applicable retroactively to children born out ofwedlock before the Act’s effective date. See Nationality Actof 1940 § 205, 54 Stat. at 1139–40. After the United StatesCitizenship and Immigration Services denied his applicationand dismissed his administrative appeal, Mr. Friend filed thisaction under 8 U.S.C. § 1503(a) seeking a declaratoryjudgment that he is a citizen of the United States. The districtcourt ruled against Mr. Friend on cross-motions for summaryjudgment,grantingthegovernment’s motion and denyinghis.Like the district court, we find it unnecessary to resolvewhether Mr. Friend was in fact born out of wedlock. Forpurposes of this decision we will assume that he was. Evenwith that factual hurdle cleared, however, two separateobstacles bar Mr. Friend’s citizenship claim under the 1940Act.The first obstacle relates to the retroactivity issue. The1940 Act was obviously not the law in effect at the time ofMr. Friend’s birth in 1931, so he must establish that the Actapplies retroactively to individuals born before its effectivedate. Congress passed the 1940 Act in view of thebackground rule that “a statute cannot be construed to operate
  6. 6. FRIEND V. HOLDER6retrospectively unless the legislative intention to that effectunequivocally appears.” Miller v. United States, 294 U.S.435, 439 (1935).We do not think the provisions of the 1940 Act on whichMr. Friend relies reflect a legislative intention that theyshould apply retroactively. Section 201(e) of the Act—theprovision that liberalized the residency requirement in amanner favorable to Mr. Friend—does not itself say anythingabout applying retroactively to individuals born before the1940 Act’s effective date. See supra note 1. But Mr. Friendcontends that § 205—the provision applicable to childrenborn out of wedlock, which incorporates § 201(e)—containslanguage making § 205 retroactive. We quote below the firstof § 205’s two paragraphs (the onlyone that could potentiallyapply here), and italicize the language on which Mr. Friendrelies:Theprovisionsofsection 201,subsections(c),(d), (e), and (g), and section 204, subsections(a) and (b), hereof apply, as of the date ofbirth, to a child born out of wedlock, providedthe paternity is established during minority,by legitimation, or adjudication of acompetent court.Nationality Act of 1940 § 205, 54 Stat. at 1139 (emphasisadded).We do not believe the italicized phrase can be construedas extending the statute’s reach retroactively. That phraseinstead describes the point at which one’s citizenship status,if successfully established, takes effect. The statute isretroactive in that sense—it confers citizenship as of the date
  7. 7. FRIEND V. HOLDER 7of the child’s birth, even if the child’s paternity is notestablished until years later. See Tuan Anh Nguyen v. INS,533 U.S. 53, 72 (2001) (interpreting successor statute,8 U.S.C. § 1409(a)); Miller v. Albright, 523 U.S. 420, 431(1998) (opinion of Stevens, J.) (same). The italicized phrasedoes not speak to whether the statute applies to individualsborn before the 1940 Act’s effective date.If there were any doubt on that score, it is dispelled by thelanguage of the second paragraph of § 205, which Congressdid make applicable to individuals born before the Act’seffective date. In doing so, however, Congress used language(italicized below) not found in the first paragraph:In the absence of such legitimation oradjudication, the child, whether born beforeor after the effective date of this Act, if themother had the nationality of the UnitedStates at the time of the child’s birth, and hadpreviously resided in the United States or oneof its outlying possessions, shall be held tohave acquired at birth her nationality status.Nationality Act of 1940 § 205, 54 Stat. at 1140 (emphasisadded). Had Congress intended to make the first paragraphof § 205 retroactive, it would have included the samelanguage in that paragraph as well. See Russello v. UnitedStates, 464 U.S. 16, 23 (1983).A second obstacle bars Mr. Friend’s claim, even if wewere to construe the first paragraph of § 205 as applyingretroactively. The first paragraph of § 205 requires, as acondition precedent to acquiring citizenship, that the child’spaternity have been established by legitimation or
  8. 8. FRIEND V. HOLDER8Mr. Friend asserts that the former Immigration and Naturalization2Service (INS) did not construe § 205’s legitimation requirement asapplying retroactively. But the INS interpretation letter he cites merelystates that the 1940 Act’s age limit on legitimation does not apply to thoseseeking citizenship under earlier acts, which had no such age limit. INSInterp. Ltr. 309.1, 2001 WL 1333861, at *2 & n.13 (Oct. 2001); Matter ofL–, 3 I. & N. Dec. 225, 225–26 (BIA 1948).adjudication during minority, which at the time relevant herewas up to age 21. Ablang v. Reno, 52 F.3d 801, 803 (9th Cir.1995); see Nationality Act of 1940 § 101(g), 54 Stat. at 1137.(That was a change from prior law; under Revised Statutes§ 1993, the State Department had permitted children bornabroad and out of wedlock to acquire citizenship throughtheir citizen father so long as the father legitimated the child,even after the age of majority. See Miller, 523 U.S. at 462(Ginsburg, J., dissenting).) Mr. Friend concedes that hecannot satisfy this condition. He contends that his paternitywas established by legitimation when his parents married in1958, but that occurred when he was 27 years old, well afterthe period of minority ended. Mr. Friend cannot claim thebenefit of § 205’s retroactive application—and with it theassistance of § 201(e)’s liberalized residency requirement—but at the same time assert that he is exempt from complyingwith § 205’s legitimation requirement.2We need not resolve Mr. Friend’s alternative argumentthat § 205 violates equal protection principles. Mr. Friendcontends that granting mothers the benefit of § 205’sretroactive application in the second paragraph of the statute,but denying that benefit to fathers in the first paragraph,results in unconstitutional gender discrimination. Even if wewere to agree with that argument, the remedy would be tomake the first paragraph of § 205 retroactive. See Wauchopev. U.S. Dep’t of State, 985 F.2d 1407, 1418 (9th Cir. 1993).
  9. 9. FRIEND V. HOLDER 9That would still leave Mr. Friend unable to meet the firstparagraph’s requirement that his paternity have beenestablished by legitimation or adjudication during minority.That requirement, although imposed only on fathers, isconstitutional. See Tuan Anh Nguyen, 533 U.S. at 62, 70;Ablang, 52 F.3d at 805–06. Thus, it would survive even ifMr. Friend prevailed on his equal protection argumentregarding the gender discriminatory nature of § 205’sretroactive effect.AFFIRMED.

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